PRACTICE AREAS

Wills

If you die without an estate plan in place, what happens? Your beneficiary designations and survivorship rights in jointly held property will often determine who receives some of your property at your death. Property you own individually at the time of your death will first be used to pay your bills and then distributed in accordance with the state of Connecticut default plan (intestate succession) if you are domiciled in Connecticut at the time of your death. If you are domiciled in another state at the time of your death, that state has an intestate succession law which may differ from Connecticut’s. The Connecticut intestate succession is as follows:

If married with a surviving descendant, your spouse inherits the first $100,000. Your spouse inherits 50% of the balance. Your children and the descendants of any deceased children inherit 50% of the balance.

If married with no surviving descendant but a surviving parent, your spouse inherits the first $100,000. Your spouse inherits 75% of the balance. Your surviving parent or parents inherit 25% of the balance.

If married with no surviving descendant or parent, your spouse inherits your entire estate.

If no spouse survives but at least one descendant survives, your children share equally and descendants of a deceased child, if any, take the deceased child’s share.

If no spouse or descendant survives, a surviving parent or parents take your entire estate.

If no spouse, descendant or parent survives, your surviving siblings share equally and descendants of a deceased sibling, if any, take the deceased sibling’s share.

If no spouse, descendant, parent, sibling or descendant of a sibling, your next of kin inherit.

If no spouse, descendant, parent, sibling, descendant of a sibling or next of kin, your step children inherit.

If none of the above applies, your estate is distributed (escheats) to the State of Connecticut.

A will can direct your assets to persons or institutions in such proportions as you may want and supersede the intestate succession laws of any state. However, in Connecticut and most states you cannot avoid some provision for your spouse by disinheriting him or her in a will unless you and your spouse have signed a marital agreement (sometimes called a “prenuptial agreement”). Under Connecticut law a spouse can elect to receive the life use of one-third of your estate no matter what you say in your will. Other than this spousal right of election and any contrary provisions of a marital agreement, Connecticut law allows you to make distribution by will of your estate as you see fit. Transferring assets to a living trust while you are alive can avoid spousal rights.

As an alternative to an outright distribution to immature or incapable beneficiaries at your death, a will can include one or more trusts (testamentary trusts) to provide management and control for such beneficiaries. Trusts contained in your will are frequently used to encourage education for young children and make sure those children get a good start in life at a time when you are not alive for guidance and direction.

Connecticut law requires that a guardian be appointed for any minor beneficiary of your estate entitled to receive more than $10,000. Guardianships provide some useful supervision of inheritances, but end at age 18, which can be a premature time, and put a probate judge in charge of the selection of the guardian without guidance from you. By the expedient of a will, you can nominate a guardian to handle not only a child’s inheritance, but also to handle all the child’s assets as well as his or her personal affairs until the child reaches age 18. Even if your will contains trust provisions to control your minor child’s inheritance and does not rely on a guardian to do so, the nomination of a guardian in your will is important to put the right person in charge of all the personal decisions needed for that child that your untimely death keeps you from making.

Your will is the place where you can designate the persons or institution (executor or executrix) you want to handle settlement of your estate subject to supervision by a probate court. A well drawn will can avoid some expenses and delays in the probate process that would otherwise occur in an intestate estate.

We are often asked whether a living trust can make a will unnecessary. The answer is “no”. Even if you have an estate plan set out in a living trust, it is always possible that you will have assets you own that are not in the living trust when you die. For example, a negligence claim against someone who caused your death is an asset of your estate and not of your trust. A simple will can direct your executor or executrix to place any assets you acquire at death or did not place in your trust during your lifetime, in your trust for management and distribution in accordance with the plan contained in the trust document.

Wills are not effective until you die. They do not allow executors to handle your property while you are alive. Provisions in a power of attorney or a living trust can be effective to provide management of your property while you are alive and might become incapable of doing that management.

Because wills do not become effective until you die, they are not adaptable to provide for your medical care if you lose the ability to direct you medical care prior to death. For that purposed most people sign advance health care directives (sometimes called “living wills” or “death with dignity documents” that apply to end of life decisions. Many people appoint a health care representative to make medical decisions for them if they become incapable of doing so.